This Recent Development argues that the Court's apparent trend toward basing establishment clause analysis on the pervasiveness or historical significance of government-supported religious activities represents an undesirable move away from strict examination of the questionable law or activity under the Lemon test. Part II briefly examines the theoretical bases of the establishment clause, then traces the Court's applications of each element of the Lemon analysis. Part III discusses the Marsh and Lynch decisions as the most recent Supreme Court additions to establishment clause doctrine. Finally, part IV analyzes two major effects of these decisions: first, the emergence of the historical approach as a significant, though not always appropriate, tool for establishment clause inquiry; and second, the Court's partial abrogation of the Lemon test as the settled and rigorous examination of most establishment of religion questions. Part IV concludes that the Court should synthesize its two approaches in order to ensure consistency in establishment clause decisions and adequately protect first amendment values.
Kenneth M. Cox,
The Lemon Test Soured: The Supreme Court's New Establishment Clause Analysis,
37 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol37/iss5/4